Probate in Mississippi
The typical
probate of a last will and testament in Mississippi
does not have to be lengthy, complicated or expensive. Unless there are special
circumstances, such as a business to wind down or estate tax returns to file,
the time required to complete most probates is only three to four months.
However, all proceedings involving the probate of wills and administration of
estates require the services of an attorney licensed to practice law in Mississippi.
When someone dies owning assets
in Mississippi
titled in his or her name there must be a legal proceeding brought in the
chancery court in the county in which some of those assets are located. If that
person dies with a last will and testament, that proceeding is referred to as
probate. If he or she does not have a will, the proceeding is referred to as an
administration of an intestate estate. There are significant differences
between the two. Probate is the legal proceeding through which a will is proven
to be the true last will and testament of a deceased person (“decedent”). The
court appoints the executor, who is usually named in the will, and one of the executor’s
first, official acts should be to secure and protect all estate assets. The
executor has many duties, and it is his attorney’s job to guide the executor
through the probate process. At the appropriate time and with court
authorization the executor can pay properly probated claims and taxes and distribute
the decedent’s assets as directed in the will. When there is no will, Mississippi statutory
law determines who will receive those assets.
In Mississippi a will may be probated in common
or solemn form. It is rare that a will is probated in solemn form. In a common
form probate any party not a beneficiary under the will is formally brought into
the proceeding through legal service of process, but any interested party has
two years from the date of the decree admitting the will to probate to contest
its validity. When a will is probated in solemn form all interested parties are
given formal, legal notice of a hearing at which the court will decide on the
validity of the will before it is admitted to probate. This eliminates the
two-year waiting period. Therefore, when there is likely to be a will contest,
it is best to probate the will in solemn form.
Is a Probate or Administration
Always Necessary?
When
someone dies with assets in Mississippi
a probate or intestate administration of his or her estate is not always
necessary. If the decedent owns all of
his or her assets jointly with another person with rights of survivorship, in
most cases ownership of those assets pass automatically to the survivor in
accordance with the instrument that created the joint ownership. Examples of
this arrangement are joint bank accounts, stocks and deeds to real property.
This same principle applies to insurance policies and retirement savings
accounts such as IRAs, profit sharing or 401(k) plans. The insurance company or
financial institution’s designated beneficiary form determines distribution of
the policy proceeds or account balance at the time of death.
Are There Any Shortcuts to Probate
of a Will?
If a person
dies owning real property in Mississippi with a will that distributes that real
property and if his or her personal assets do not exceed $10,000.00 in value
and if all known debts have been paid, including estate and income taxes, then
his or her will may be admitted to probate as a muniment of title only by
filing a petition with the chancery court. The purpose of this action is to
clear up the land records so that they accurately reflect who the new owner is
with a minimum amount of delay and expense. However, this type of probate does
not clear up questions such as debts and taxes that might be a lien against the
real property or the claims of those that might contest the will. Because
potential purchasers of real property and lending institutions require that
these questions be resolved before closing, practically speaking probate as a
muniment of title is not as valuable a tool as one might think.
What Does a Probate or
Administration Accomplish?
Probate and administration
proceedings settle the claims of both the creditors and the heirs at law or
beneficiaries under the will. Mississippi
law provides procedures that both creditors and the personal representative
must follow to determine which claims are to be paid and settle any disputes
with respect to the validity and amounts of claims. It also provides a forum to
determine if a will is the true last will and testament of the decedent and to
settle disputes over the interpretation of that will. When there is no will an
intestate administration is necessary to determine who are the decedent’s heirs
at law. Probate and administrative proceedings thus provide heirs, beneficiaries
and creditors with a legal, binding process whereby the assets of the decedent
are properly handled, claims are determined and paid, and any taxes owed the
state or federal government are paid. Call David Dunn or Chris
Hemphill at 662-327-4211 for your probate needs.
W. David Dunn © 2007
